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Judicial Line Drawing and Implications for Tax Avoidance
Get PDFThe choice between a bright line and a nuanced approach is one of the cornerstones of judicial law making. Yet the nature and implications of this choice remain to be fully understood. The term “bright line” is often used ambiguously to refer to two distinct line-drawing techniques. The first construal of the term refers to the variability in determining the circumstances that qualify the facts for the application of the law (the legal rule’s antecedent), where the choice ranges between a bright-line rule, characterized by simplicity and unambiguity, and a multifold rule, which involves a complex, multifactor analysis. The second construal concerns the variability in the legal consequences assigned to these circumstances (the legal rule’s consequent), where the choice is between a bright-line rule, leading to binary consequences, and a multifold rule, allowing for multiple possible consequences. Considerations about fairness and efficiency in the use of bright-line rules will be distinct, depending on whether the term is used in the first sense (a bright-line antecedent) or the second (a bright-line consequent). Variability in the antecedent affects the accuracy of the circumstances under which the rule applies: a brightline antecedent provides greater simplicity at the cost of accuracy, whereas a multifold antecedent results in a more accurate determination at the potential expense of greater complexity. Variability in the consequent affects the granularity of the consequences of the rule: a bright-line consequent will have an all-or-nothing legal result, whereas a multifold consequent will have a more nuanced legal result. This article argues that the role of bright-line rules in encouraging tax-avoidance behaviour has been significantly neglected in the literature and case law. The poor understanding of how bright lines interact with the different components of legal rules has led to an underappreciation of the advantages and pitfalls of bright-line rules. This confusion has caused courts to mistakenly conflate this legal design choice with the distinction between legal form and economic substance. The article demonstrates the consequences of misinterpreting multifold rules, as shown by the Canadian courts’ approach to defining “use” in interest expense deductibility, inadvertently facilitating prevalent tax-avoidance strategies
Property Says No: Relational (In)Equality, Encampments, and Property Rights
Get PDFFor around two decades, if not longer, Canada has seen a number of cases dealing with tent encampments, typically, but not always, located in public parks. Often these decisions arise out of municipalities seeking interlocutory or interim injunctions against the tent encampments. Property and property rights have a significant role to play in these decisions as the alleged harm to property and property rights tends to be determinative of the matter. In this article I seek to explore why it is that these decisions are showing property rights more respect than the rights of those within tent encampments. I argue, that contrary to recent theoretical arguments, property does not reflect relational justice nor respect for individuals as individuals. Instead, property requires respect for property rights because of the fact that property is a communal endeavour. Thus, the question should not be whether these tent encampments are causing property rights irreparable harm but whether the legal treatment of these tent encampments and their residents reflect the broader community in which they exist
Jurisgenerative Tissues: Sociotechnical Imaginaries and the Legal Secretions of 3D Bioprinting
Get PDFThree-dimensional ‘bioprinting’ is under development, which may produce living human organs and tissues to be surgically implanted in patients. Like tissue engineering and regenerative medicine generally, the process of bioprinting potentially disrupts experience of the human body by redefining understandings of, and becoming actualised in new practices and regimes in relation to, the body. The authors consider how these novel sociotechnical imaginaries may emerge, having regard to law’s contribution to, as well as its possible transformation by, the process of 3D bioprinting. The authors draw on Gilbert Simondon and corporeal, material feminists to account for these disruptions as ‘ontogenetic,’ in the sense that technology can produce new ontologies or beings. The authors focus namely on ontogenesis, individuation and the pre-individual forces that comprise, and yet remain inexhausted by, the process of 3D bioprinting. The authors argue legal phenomena are pre-individual forces that ‘in-form’ ontogenesis. These pre-individual forces are indistinguishable from those implicated in the individuation of the body’s physical form; thereby, the individuation of the bodily material through 3D bioprinting may be expressive and generative of sociolegal phenomena, at least as those relate to the body. The authors conclude that 3D bioprinting shores up conventional, liberal conceptions in law of the human body as individual, bounded and primarily contractual. Three-dimensional bioprinting may introduce ontological difference to the extent it promises and realises a new temporality of the human as a species- and legal-subject, although such a development would only seem to expand, rather than attenuate, a biopolitical regime
The Business Judgment Rule, the Public Interest Powers, and the “Fair and Reasonable” Test: Fellow Travellers or Ships in the Night?
Get PDFIn the most controversial corporate transaction in Canadian history, Magna repurchased all of the Class B superior voting shares from its controlling shareholder, Frank Stronach, at a 1799 per cent premium to the otherwise identical but inferior voting Class A shares, thus ending Stronach’s long reign as de jure controller of Magna. Despite this massive and unprecedented premium, the transaction generated about three billion US dollars in aggregate value, or about 40 per cent of the pre-transaction market cap of Magna. I nonetheless argue that the transaction was massively flawed from both a procedural and substantive point of view and should not have been approved by the Ontario Securities Commission (OSC). The OSC has artificially and incorrectly limited its public interest powers to situations where there is an abuse of both shareholders and capital markets, as opposed to mere unfairness. But even under the ostensibly more demanding abuse standard, by flagrantly transgressing extant commercial norms, the transaction violated the reasonable expectations of Class A shareholders and should not have been approved.The transaction was also approved by the Ontario Superior Court of Justice as meeting the “fair and reasonable” standard required of a statutory arrangement. In so doing, the court followed extant jurisprudence. Nonetheless, the test itself is a historical anachronism that substantially ignores the two most important developments in Canadian corporate and securities law in the past half-century: the recognition of reasonable expectations as a source of legal rights, and a focus on the procedural propriety of the transaction as an indicium of substantive fairness
The UN Guiding Principles on Business and Human Rights: A Commentary
No full textThis comprehensive Commentary provides an in-depth analysis of each of the 31 UN Guiding Principles on Business and Human Rights, as well as the 10 Principles for Responsible Contracts. It engages in both a legal and contextual examination of the Principles alongside their application to real world practices at both the domestic and international levels.https://digitalcommons.osgoode.yorku.ca/faculty_books/1401/thumbnail.jp
Transfer Theory and the Assignment of Contractual Rights
Get PDFThe possibility of assigning contractual rights to third parties has often been taken to suggest that they amount to a form of “property” or “asset.” This point has been seized upon by proponents of transfer-based accounts of contract law, which understand contract as a means of transferring existing rights instead of creating new rights and duties between its parties. In this article, I set out to critically examine the extent to which this assumed compatibility between transfer theories of contract and the assignment of contractual rights can truly be sustained. As I argue, only one version of transfer theory is able to properly account for the way in which assignment actually operates within the common law tradition, corresponding to the version that most closely resembles more orthodox promise theories of contract law by understanding contract as a transfer of rights directly against the person of the promisor. By contrast, I suggest that the dominant version of transfer theory, according to which contract amounts to a transfer of rights over external things, is unable to draw a full distinction between contract and a completed assignment of contractual rights and so is unable to explain the rules that govern the latter class of transaction at common law and in equity
Oversight of Police Intelligence: A Complex Web, but Is It Enough?
Get PDFThis article analyzes the jurisdiction, function, powers, and expertise of oversight mechanisms with reference to capacity to oversee the legality of emerging police intelligence practices such as facial recognition, social media analytics, and predictive policing. It argues that oversight of such practices raises distinct issues ranging from the general oversight of policing, given the secrecy associated with police intelligence generally, to the use of complex software in particular. It combines doctrinal analysis with analysis of interviews with policing intelligence analysts, intelligence managers, lawyers, and IT professionals in three jurisdictions: Canada, Australia, and New Zealand. It brings together the roles of a variety of entities involved directly or indirectly in oversight; in particular, professional standards units, independent police and public sector oversight bodies, intelligence oversight, privacy and human rights regulators, courts, political bodies, contracting parties, and ad hoc bodies. Understanding the web of oversight as a whole, and comparing across jurisdictions, it concludes with specific proposals for reform
Insulating the Church: Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga and the Suppression of Public Law in the Construction of Religious Communities
Get PDFIn Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, the Supreme Court of Canada undertook to grapple with the question of whether, when, and to what extent courts should get involved in the internal decisions of religious groups where there are allegations of procedural unfairness. This paper approaches Aga with an interest in the issue of state regulation of religion through law. The paper (1) reviews and assesses the Court\u27s judgment; (2) summarizes and analyzes the 12 intervener submissions, many of which were made by religious groups likely to be affected by the Court\u27s eventual judgment; and (3) outlines some conclusions that interpret Aga in light of the intervener submissions and the Court\u27s lead precedent on point, Wall. The paper argues that Wall\u27s tenuous suppression of public law in the internal matters of religious organizations is affyrmed and advanced in Aga. For all the Court\u27s insistence that the private law construction of religious associations does not completely insulate religious groups from judicial oversight, there appears to be no place for public and constitutional law in setting norms for how religious groups should treat their members, including whether and how they offer avenues for grievances and redress
The Significance of R. v. Albashir in the Evolution of Constitutional Remedies
Get PDFThis paper examines the impact of the Supreme Court of Canada’s decision in R. v. Albashir on constitutional remedies under section 52(1) of the Constitution Act, 1982 and section 24(1) of the Canadian Charter of Rights and Freedoms. Albashir marks a step in the evolution of constitutional remedies by adding to the list of factors that can justify a court declaring a law invalid on a prospective-only basis. It recognizes a new exception to the presumption of retroactivity that applies when a court declares a law to be invalid. Where a court suspends its declaration of invalidity, once the suspension expires, the effect of the declaration may be prospective only, if that is necessary to give effect to the purpose of the suspension. Prospectivity is justified where retroactivity would undermine the very purpose of the suspension. Albashir is also significant for confirming that a remedy under section 24(1) of the Charter is available to offset any negative consequences that prospective declarations might have. Any accused whose conduct had been unconstitutionally criminalized under the prospectively invalidated law, would have recourse to an individual section 24(1) remedy such as a stay of proceedings. The paper also examines the guidance given by the Supreme Court that courts should be more explicit about the temporal application of their remedial declarations. Albashir sets a new standard for remedial clarity, urging courts not only to explain their reasons for suspending declarations of invalidity, but also to explicitly address whether a declaration is to operate retroactively or purely prospectively once the suspension expires. The Court further provides suggestions on temporal clarity to lawmakers in crafting remedial legislation, through retroactive criminal legislation and transition provisions, although these seem unlikely to lead to the desired certainty. An annex to the paper including a “roadmap” chart, distills the relevant remedial principles to aid litigants in future cases involving declarations of constitutional invalidity